International Symposium on Alternatives to Litigation in Nazi-Looted Art Disputes

Remarks

Douglas DavidsonSpecial Envoy for Holocaust Issues, Bureau of European and Eurasian Affairs

The Hague, Netherlands

November 27, 2012

Let me begin by congratulating our hosts, the organizers of this conference, on ten years of successful work. The Advisory Committee on the Assessment of Restitution Applications for Items of Cultural Value and the Second World War, aside from having one of the longest and best names of any such organization, has also served as a model of its kind. Its achievements are something to which other countries, including my own, can only aspire. And just such an aspiration is, of course, the subject of my talk today.

I have been asked to address the progress we have made in creating a similar advisory committee, or something like it, to deal with ownership disputes over Nazi-confiscated art in the United States. Like many things that involve the large and disparate and in many ways unique country I come from, this is not so simple a subject. I doubt I can do this topic justice in the brief time allotted to me today, either. But because of the presence of so many experts here there is probably no need for that. The best I can do is to try to give you a clearer picture of the current thinking within the United States Government in regard to this controversial topic.

Our topic is controversial partly because art objects have always seemed to exercise a particular fascination for conquering armies and nations. Consider, for instance, the four horses on the Basilica of St. Mark in Venice. They used to be on the Hippodrome in Constantinople. When the Venetians sacked that city in 1204 they took them home with them. Napoleon, one of the great looters of his age, carried them away in 1797. They came back to Venice in 1815. True, this is a rare case of a pre-twentieth century return. But you could wonder whether it was a return to the right address. The Byzantine Empire no longer exists, after all, but Istanbul does; where the Hippodrome used to be, one now finds Sultan Ahmet Square. If nothing else, this illustrates that determining the legitimate owner of a venerable work of art can be a difficult task.

Despite the difficulties, there have been attempts over the years to return art objects to their rightful owners and even to bring to justice the people who stole them. Consider, for instance, something that happened in 70 BCE. That was the year when representatives of the cities of the Roman province of Sicily traveled to Rome to file a complaint against the former provincial governor, Gaius Verres. They wisely convinced Marcus Tullius Cicero to become the prosecutor in this case.

Verres was charged with bribery, with the unlawful punishment of Roman citizens, with the abuse of tax laws, and with illegal seizures of private and public property. Most important for our purposes today, he was also accused of seizing art for his own personal use. As far as I know, this was the first instance recorded in detail of litigation over the rightful ownership of plundered art. It would not, of course, be the last.

Verres engaged the most famous lawyer of the day, Quintus Hortensius, to defend him. Hortensius attempted to slow the course of justice, but Cicero’s unusually brief opening statement—along with the parade of witnesses he then quickly produced—caused the trial to end rather suddenly, with Verres first calling in sick and then absconding to Gaul with much of the art he had looted. Having gone into voluntary exile, he was then sentenced to permanent exile and ordered to pay an indemnity, though no one seems to know whether he did or not—or, if so, how much. In a manner that may sound familiar, Verres managed to keep much of the art he had plundered.

Hortensius himself, as the Encyclopedia Britannica dryly observes, did what many successful lawyers surely dream of doing: “He gradually withdrew from politics and devoted himself to gourmet cuisine, having a particular fondness for lampreys from his ponds.” Cicero also did what many present-day attorneys might only dream of doing. He published all the speeches he would have given in court had the trial dragged on. These five are generally grouped under the heading “Actio Secunda” or “Second Pleading.” The fourth of these concerns plundered art. I think it is worth considering the way in which that particular pleading begins:

I come now to what Verres himself calls his passion; his friends call his disease, his madness; the Sicilians call his robbery…. I say that in all Sicily, in all that affluent and ancient province, with so many wealthy towns and families, there was no silver vessel, no Corinthian or Delian plate, no jewel or pearl, nothing made of gold or ivory, no statue of marble or brass or ivory, no picture whether painted or embroidered, that he did not hunt down, that he did not inspect, that, if he liked it, he did not carry off.

… When I say that he left nothing whatever of the sort in the whole province, know that I am speaking in the Latin manner, not in the manner of an accuser. I will speak even more plainly; I will say that he has left nothing in any one's house, nothing even among his hosts, nothing in public places, not even in the temples, nothing in the possession of any Sicilian, nothing in the possession of any Roman citizen; that he has left nothing, in short, that came either to his eyes or to his mind, whether private property or public, profane or sacred, in all Sicily.

This is, if nothing else, highly reminiscent (or perhaps prescient is a better word) of the plundering of art undertaken by the Nazis, which many people have described as the greatest art theft in history. What distinguished the plundering done by the Nazis during wartime from the plundering that preceded it was not just the dimensions of the looting but also the fact that afterwards the conquering forces made a concerted effort to give the stolen art back to its countries of origin. This is not entirely a unique occurrence. The Duke of Wellington, for instance, tried to give back to Egypt and to Venice and to other places, the art works that Napoleon had taken from them. But it is certainly rare.

The United States took the leading role in the effort to return art looted by the Nazis to its countries of origin. The reasons for this are partly rooted in our history. A Prussian survivor of the Battle of Waterloo, an immigrant to the United States named Francis Lieber, at the request of President Abraham Lincoln wrote Instructions for the Government of Armies of the United States in the Field, which were issued on 24 April 1863 in the very midst of our Civil War. The International Committee of the Red Cross terms these instructions “the first attempt to codify the laws of war.” Article 10 of what we now call the Lieber Code stated this:

If such works of art, libraries, collections, or instruments belonging to a hostile nation or government can be removed without injury, the ruler of the conquering state or nation may order them to be seized and removed for the benefit of said nation. The ultimate ownership is to be settled by the ensuing treaty of peace.

In no case shall they be sold or given away, if captured by the armies of the United States, nor shall they ever be privately appropriated, or wantonly destroyed or injured.

I would imagine that you could almost trace a direct line from this particular article of the Lieber Code through The Hague Convention of 1954 to UNESCO’s Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property of 1970 to the UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects of 1995 to the Washington Conference Principles on Nazi-Confiscated Art of 1998. All of them, I think, re-state in various ways and at greater length and in greater detail what Mr. Lieber set out so simply 150 years ago.

The Washington Principles on Nazi-Confiscated Art are, to be fair, almost as succinct as Article 10 of the Lieber Code. They were the product of an international conference that took place almost exactly 14 years ago, when representatives of 44 governments and 13 non-governmental organizations gathered in Washington to discuss what they called “Holocaust-era assets.” There, among many other things, they agreed on “11 non-binding principles to assist in issues relating to Nazi-confiscated art.” The eleventh and final principle stated: "Nations are encouraged to develop national processes to implement these principles, particularly as they relate to alternate dispute resolution mechanisms for solving ownership issues."

A number of European nations took this encouragement seriously, not least the Kingdom of The Netherlands. They created alternate dispute resolution mechanisms, which mainly came in the form of advisory bodies to their ministers of culture. Three years ago officials in the United States Department of State began to ponder whether it was possible to create an American alternate dispute resolution mechanism of our own. In the course of five town meetings with interested parties, my predecessor, Ambassador J. Christian Kennedy, and the Special Advisor to the Secretary of State for Holocaust Issues, Ambassador Stuart Eizenstat, developed the outlines of such a mechanism, which they presented in public fora in 2010. They envisioned a commission that would consist of five eminent persons drawn from the legal, the artistic, and the historical worlds. The commission would have a staff to assist with provenance research and other matters. It would run on two parallel “tracks” – a finding track and an alternative dispute resolution track. In order to separate adjudicators from provenance researchers, these tracks would operate independently of one another. The Commission would issue “non-binding opinions.”

This vision of an American art spoliation commission has, unfortunately, proven easier to describe than to realize. As Ambassador Eizenstat put it in testimony before the United States Commission on Security and Cooperation in Europe in May 2010:

Since the Prague Conference [on Holocaust-era Assets in June 2009], the State Department has held open meetings during which interested parties have had an opportunity to express their opinions about whether a commission would serve a useful purpose in the United States. These meetings produced a wide variety of recommendations on how such a commission should be structured and what its exact role should be. But there was at least basic agreement that a U.S. commission would provide a forum in which claimants could bring a claim without assuming the high costs of legal proceedings. Such a forum would be particularly well-suited to deal with claims for works of lesser value. This is because most experts believe that claims for high value artworks will inevitably go to the court system, since the value of the artwork would justify the expense of a judicial proceeding, whereas lesser value items would not.

We have not yet, however, come up with a model of a commission – what qualifications commissioners should have, how they would be appointed, where in the federal government structure the commission would fit, what its exact responsibilities would be, how it would be funded. These are questions we are still studying.

We continue to study these questions today. Unfortunately, our study has revealed many impediments to realizing a workable model for such a commission in the United States. Many of the impediments are financial and institutional, just as Ambassador Eizenstat noted. But not all. The chorus of opinion concerning this proposal from interested parties, as he suggests in his testimony, was, to say the least, scarcely concordant. It is not as if there is a wellspring of support in the United States for a single model of such a commission.

One significant impediment is the nature of the American system of government. Over the years our central government, which we refer to as the “Federal Government,” has taken on more and more tasks, with, for instance, new cabinet departments—new ministries, if you will—of energy, education, and homeland security appearing on the scene toward the end of the last century and the beginning of this. But, even so, unlike most countries in Europe, the Federal Government of the United States does not have a Ministry of Culture. Given our history, traditions, and inclinations, it also strikes me as highly unlikely that we will create such a cabinet department any time soon. The United States also has few museums either under the direct control of the Federal Government or even subsidized by it. As the website of the American Alliance of Museums laments, “Only a small (and shrinking) percentage of America’s 17,500+ museums receive federal funding of any kind.”

This simple fact has important implications for the subject of this particular conference. In the same testimony I just cited, Ambassador Eizenstat said:

When considering such a commission for this country, of course, we should recognize that the situation in Europe is significantly different from that in the United States. With a notable few exceptions, European museums are owned by central, provincial or municipal governments, whereas in the United States the majority of museums are private … As a result, European governments have more direct control over their museums than we do in the United States. In addition, the amount of art displaced between 1933 and 1945 and still in Europe is also considerably larger than the amount of displaced art now in the United States.

Here he encapsulates in an indirect way the fundamental obstacle encountered in our attempts to create such a commission: The ability of an advisory panel to recommend to a minister that a work of art be removed from the wall of a state-owned museum and restored to its rightful owner is not, practically speaking, a possibility in the American context. This suggests that another model must be found—one that somehow substitutes mediation or arbitration for ministerial decision-making. This would perhaps be most closely equivalent to the private and third-party dispute resolution that the Dutch Restitution Committee and the German Limbach Commission engage in.

The question that arises, though, is whether this is really necessary in the United States. As Ambassador Kennedy pointed out in a speech in Potsdam in 2007 entitled “The Role of the U.S. Government in Art Restitution”:

[A]rt restitution in my country has generally involved a private citizen who discovers that an artwork once held by his or her family is now hanging in a museum or private collection. A claimant new to the art field may need to hire experts who can help with this process. On the other side of these cases, we find the holder of the art, usually a museum or collection. This holder may have done some provenance research on its holdings but has sometimes been unaware of the complete history of the individual works. Usually working through their respective attorneys, the two parties attempt to establish and agree on the facts of the case, and then to work out a settlement. Agreements between parties without resort to judicial channels have been frequent. If the talks break down, or if they fail to get started at all, the claimant has the option of turning to the courts.

Many museums, as I am reminded from time to time by museum officials, do in fact voluntarily return works of art to those they deem the rightful owners. Our larger art galleries, like our larger art auction houses, even employ officials to research the provenance of their holdings or of the art they wish to sell. In 1998, too, the U.S. Association of Art Museum Directors issued a “Report of the Task Force on the Spoliation of Art During the Nazi/World War II Era (1933-1945), which contained principles and guidelines that clearly preceded and informed the Washington Conference Principles. In the section entitled “Response to Claims Against the Museum,” the report states:

1. If a member museum receives a claim against a work of art in its collection related to an illegal confiscation during the Nazi/World War II era, it should seek to review such a claim promptly and thoroughly. The museum should request evidence of ownership from the claimant in order to assist in determining the provenance of the work of art.

2. If after working with the claimant to determine the provenance, a member museum should determine that a work of art in its collection was illegally confiscated during the Nazi/World War II era and not restituted, the museum should offer to resolve the matter in an equitable, appropriate, and mutually agreeable manner.

3. AAMD recommends that member museums consider using mediation wherever reasonably practical to help resolve claims regarding art illegally confiscated during the Nazi/World War II era and not restituted.

These guidelines suggest an informal means of resolving art disputes—as long, of course, as museums adhere to them, especially by resorting to mediation. I have no idea whether such mediation has occurred and, if so, how often. I cannot, however, recall hearing of any such cases, except possibly court-ordered mediation. If such mediation is really as rare as it appears, then the related and unanswered question becomes: How many such disputes are likely to reach an American art spoliation commission in which both parties would necessarily have to agree to mediation? After all, as Cicero might have said, “uti possidetis, ita possideatis,” which we Americans, using an old adage instead, would probably paraphrase as “possession is nine-tenths of the law.”

Two related Holocaust art disputes recently addressed in U.S. courts suggest why there may be interest in and art commission, but also give me pause about the likelihood that parties could successfully mediate art disputes. Several years ago, Claudia Seger-Thomschitz, the sole surviving heir of an Austrian-Jewish art collector named Oskar Reichel, sought to recover two paintings by Oskar Kokoschka, one in a museum and the other in private hands, both in the United States of America.

A federal court determined that any efforts by Ms. Seger-Thomschitz to recover a painting held by a private individual in Louisiana would be time-barred. One could envision a litigant with a claim that is time-barred attempting to pursue that claim before an art commission, if such a thing existed in the United States, with no statute of limitations. In the related matter involving the museum, however, the relevant court of appeals noted that before the museum initiated litigation, private negotiations had “proved fruitless.” One might also wonder, then, why the current owners of a work of art that they are confident they have acquired legitimately would wish to submit themselves to alternative dispute resolution and the risk of an adverse judgment.

But before we finally get to the question of whether the State Department spoliation commission described by Ambassadors Eizenstat and Kennedy is a real possibility, let us briefly consider other, existing alternate dispute resolution mechanisms available to claimants in the United States and abroad. One of them is an organization called the New York Holocaust Claims Processing Office. I cite here from an article entitled “The Holocaust Claims Processing Office: New York State’s Approach to Resolving Holocaust-era Art Claims,” which appears in a book called Holocaust Litigation: Perspectives on the Litigation and Its Legacy. The author of this article is none other than Monica Dugot. Among other things she has this to say about the work of the Holocaust Claims Processing Office (HCPO):

Experience with lawsuits filed in the United States has shown that litigation is not the most productive avenue for reaching fair and appropriate solutions with regard to artwork looted during the Nazi era. First it is very costly. Attorneys’ fees can easily exceed the monetary value of the works involved. Second, the legal process can be an emotionally wrenching and public affair. Moreover, litigation results in resolutions that are unpredictable, often cash driven, and anything but amicable. To date the HCPO has avoided litigation by promoting a climate of cooperation… Because of its success in providing a centralized venue for Holocaust survivors, their heirs, and the heirs of Holocaust victims over the years, the HCPO has become a recognized authority on matters relating to Holocaust-era losses, compensation, and restitution. The office has been able to leverage this unique position…to exert pressure on other entities such as state-funded museums and financial institutions, thereby making these entities more responsive to claimants.

The HCPO continues to do valuable work today. It is a service that the New York State Superintendent of Financial Services offers free of charge to claimants throughout the country and indeed, I believe, throughout the world. The HCPO handles all kinds of Holocaust-related claims, including art. It has a good track record of success, as Ms. Dugot notes. We may then ask ourselves whether we would not be re-inventing the wheel so long as the HCPO exists if we were to set up another such body for resolving art-related disputes arising from the Holocaust. Superintendent Benjamin Lawsky and the people of the State of New York deserve our special thanks and praise for continuing to support such an institution, which is under the able leadership today of Anna Rubin.

Another alternate means of resolving such art-related disputes in the United States is to resort to law enforcement agencies such as the Federal Bureau of Investigation and the Immigration and Customs Enforcement arm of the Department of Homeland Security. I sometimes think these are actually our most effective alternate dispute resolution mechanisms for cases of Nazi-confiscated art. It is true, of course, that the seizure by customs agents in the late nineteen-nineties of Schiele’s painting “Portrait of Wally” led to litigation that began to resemble that described in Dickens’ novel Bleak House in its length and, for all I know, its expense. But not all of the art that law enforcement and customs officers identify and/or attempt to return goes through litigation. In fact, the investigators and agents of the federal government agency we like to call “ICE” have had much success in convincing those who hold art that does not belong to them to give it back.

United States importation laws on smuggling and trafficking give ICE the authority to investigate crimes that involve the illicit importation and distribution of cultural property. (Apparently this even includes dinosaur skeletons.) Customs laws also allow these investigators to seize cultural property brought into the United States illegally, especially if it has been reported lost or stolen. These investigators work with experts to do the kind of provenance research that an art spoliation commission would also have to do. The investigators of this branch of the Department of Homeland Security, which has offices in 48 countries, work with the United States Department of State and the United States Department of Justice, with New York State’s HCPO, with Interpol, and even the United States Fish and Wildlife Service in this effort. ICE’s agents have, as I have just noted, proven successful at this task. In the past year or two, for instance, they personally handed over two paintings to the President of Poland. They have also returned 11 oil paintings to Pirmasens and a very valuable piece of Meissen porcelain to Dresden in Germany. As far as I know, none of these restitutions involved litigation.

Now let me turn to the heart of the matter—to the efforts by the United States Department of State to create an alternate dispute resolution mechanism to deal with cases of art displaced during the Second World War. Here I wish to recall Ambassador Kennedy’s words from Potsdam: “The idea behind the Washington Principles was not to establish a specific process or mechanism to achieve the objective of returning art to rightful owners, but instead to provide guidelines that could be applied by all countries under their own national laws, procedures and practices.” I think we need to keep these words in mind as we examine the current state of efforts to create an art spoliation commission in the United States of America, if only because, as I pointed out earlier, our national laws, procedures, and practices are perhaps another example of what we like to call “American exceptionalism.”

To put it briefly, no one within the United States Government has given up on the idea of the commission that Ambassadors Eizenstat and Kennedy outlined two to three years ago. But I make this statement with a few caveats attached. One is that such a commission is highly unlikely ever to be located in the United States Department of State. For one thing, it is not normally the function of a foreign affairs agency to engage in this kind of thing. As far as I know, none of the five European art commissions represented here today are attached to their foreign ministries. Like many foreign ministries in Europe, too, the United States Department of State is also mindful that it must husband its constantly dwindling resources carefully. Thus, for both policy and budgetary reasons, the State Department is an improbable, if not unsuitable, host for an art spoliation commission.

Now, having said that, I must also admit that there is in the Department of State something called the Cultural Property Advisory Committee. Its role is to advise the President or his designee, who is ultimately the Assistant Secretary of State for Educational and Cultural Affairs, on appropriate U.S. action in response to requests from State Parties for assistance in protecting their cultural heritage, in accordance with the stipulations of Article 9 of the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property. The Committee has 11 members appointed by the President to renewable three-year terms. Two represent the interests of museums, three are experts in archaeology, anthropology, or a related field, three are experts in the international sale of cultural property, and three represent the interests of the general public. The Committee receives support from a kind of secretariat within the Department of State known as the Cultural Heritage Center.

As you can see, this Committee is in some ways not dissimilar from the proposed Nazi-looted art spoliation committee that Ambassadors Eizenstat and Kennedy outlined. The difference, of course, is that its existence is rooted in an international covenant and that it exists to deal with the concerns of states that wish to preserve their cultural heritage. Pursuant to the 1970 Convention and domestic U.S. implementing legislation, the United States has entered into several bilateral agreements imposing import restrictions on archaeological and/or ethnological objects, the pillage of which creates jeopardy to the cultural patrimony of another state. None of these agreements, unfortunately, pertain to the specific case of title disputes over Nazi-looted art that an American alternate dispute resolution mechanism would be designed to address.

Nonetheless, it remains United States policy that alternatives to litigation are preferable in dealing with Holocaust-era claims. So, in the end, we have begun to turn our attention outwards. We have begun, in other words, to explore an alternate means of creating an alternate dispute resolution mechanism for art displaced before and during the Second World War. We are now examining options for a public/private partnership. While I have few specifics to offer today, the idea is that a university might be able to provide the kind of services necessary for such a commission—provenance research and expert advice, for instance. We would also hope that professional mediators might volunteer their assistance in cases of need. At this point it does not appear that we could ever apply binding arbitration to such disputes—or even that interesting innovation of the Dutch restitution committee, a “binding opinion”—but, where two or more parties were willing to subject their differences of opinion to a mediator’s guiding hand, this might well be the next best thing.

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